Saturday, February 27, 2010

The one, true and thus far only Episcopal Diocese of Pittsburgh in the Anglican Communion has now filed an appeal to the Pennsylvania Commonwealth Court from a number of orders entered by Judge James in the lawsuit I have described in the series of posts linked at this page. You can download the notice of appeal from this link, but I can tell you the gist of what it says by quoting this language from it:

Notice is hereby given that the defendants The Episcopal Diocese of Pittsburgh, The Right Reverend Robert William Duncan, The Right Reverend Henry Scriven, Babatunde Fapohunda, Robert Manson, Kathleen Marks, The Rev. J. Douglas McGlynn, James Moore, John Morgan, Lynn Patterson, Donald Pepler, Thomas Rampy, William Roemer, Bruce G. Seiling, John Stevenson, Richard Thomas, and Douglas Wicker hereby appeal to the Commonwealth Court of Pennsylvania from the order entered January 29, 2010 (Docket Nos. 150, 151 and 152), the opinion and order entered October 6, 2009 (Docket No. 148), the order entered April 21, 2009 (dated April 17, 2009) denying Defendants' Motion to Strike Praecipe for Entry of Appearance (Docket No. 129) and the order entered on May 9, 2007 (dated May 8, 2007) denying Defendants' Motion to Dismiss or Strike Petition (Docket No. 85).

You might well wonder why so many individuals are named in the Notice of Appeal. The explanation is simple: they were all people whom Calvary Church, its rector (Dr. Lewis) and its senior warden (Philip Roberts) sued in their original complaint filed October 24, 2003. And only God Himself knows at this point why the plaintiffs named them; the plaintiffs certainly do not. Back in 2003, the individuals were members of either the Standing Committee of the Diocese, or of the board of directors of the religious corporation formed to hold title to the property of the Diocese. (As an unincorporated association, the Diocese itself is unable to take or hold title to property under Pennsylvania law.)

The problem is that the case is now on appeal -- meaning that there is no longer any jurisdiction in the trial court. And many of those members of the board of directors and the Standing Committee named in 2003 are no longer serving on those bodies, having been replaced through elections held regularly in the intervening seven years. The plaintiffs, however, never saw fit, during the entire seven years the suit was pending in the Court of Common Pleas, to substitute the current members in place of the old ones. That fact leads to the conclusion that the plaintiffs were not intending to sue the Standing Committee or the board of directors as such, but only the individuals they chose to name. Which makes it entirely doubtful whether they knew what they were doing at the time, because there is nothing any of those individuals did in an individual capacity that could make them liable on any of the claims made in the plaintiffs' lawsuit.

That is a problem, however, for the plaintiffs -- and I respectfully decline to advise them on how to manage their lawsuit; I note simply that in its current stance, it is as incomprehensible as is the order which Judge James entered last October (as I explained in this previous post), as well as his most recent one (discussed in this post). The Commonwealth Court has its work cut out for it, and it will not be an easy job to make sense of what has supposedly been decided against whom in the trial court.

As you can determine from the quotation above, the appeal is taken first and foremost from the judge's "turnover" order (which in fact did not order that anything be turned over, but only that certain persons -- who were not parties to the lawsuit, and over whom the court therefore had no jurisdiction -- "take instructions" as to the assets they held only from the non-diocese and its non-diocesan bishop, whom Judge James had conceived, under the terms of the earlier stipulation which had "settled" the lawsuit in October 2005, was the only person now qualified to give those instructions). And if that parenthetical explanation of the order appealed from confuses you, it is the fault of Judge James, and not of your trusty Curmudgeon. I am simply reporting what the Judge purported to decide.

The "turnover" order which does not actually order that anything be turned over is based in its own turn on Judge James's decision of October 6, 2009, which held that the stipulation settling the case which he had approved four years earlier had been violated. And that order came in response to a "petition to enforce settlement and order" which Calvary and its related plaintiffs had filed with the court on December 19, 2006. When they filed their petition for enforcement, the plaintiffs gave it the same case number as the case they had brought in 2003. This had the effect of seeking to continue the proceedings in that old case, rather than starting a new one.

The defendants objected that the plaintiffs had to file their petition in a new case, since the court had not reserved jurisdiction over the old case in approving its settlement. One look at that stipulation will convince anyone with a legal mind that the defendants were correct about this. It is titled "Stipulation by Counsel", and begins and ends with these words:

In amicable resolution of the above litigation, the undersigned counsel, respectively on behalf of the Plaintiffs, Defendants and the Intervenors, hereby stipulate as follows . . .

. . .

Approved and So Ordered:

/s/President Judge Joseph M. James

There is no language reserving the court's jurisdiction to enforce the terms of its order. Without that language, the court's "order" was like any other judgment: binding on the parties involved, and requiring them to do certain things -- in this case, to continue to hold title to their property as they had held it before. Any breach of such a judgment requires the filing of a new lawsuit, because once a judgment becomes final, the court loses jurisdiction over the parties to it, and has to re-acquire such jurisdiction by means of a new lawsuit.

However, Judge James denied the defendants' motion on those grounds to strike the "petition to enforce stipulation and order", and treated the matter exactly as though he had retained jurisdiction to enforce the terms of the settlement. That is the earliest order listed above (entered May 9, 2007) from which the current appeal is taken (and will probably be the easiest part of the case to reverse).

The final order involved in the appeal is the one in which Judge James allowed the newly created non-diocese to intervene in the proceedings, and refused to strike the appearance ("praecipe") entered by its attorney, claiming to represent the true, continuing "Episcopal Diocese of Pittsburgh." This attorney's client subsequently became the entity whose bishop Judge James recognized as the only person entitled to tell the non-party banks holding the diocesan funds, and the non-party religious corporation holding the diocesan real property, how to handle those funds and that real property.

What a mess! What I object to most in these proceedings is how the leftwing activists who run 815 Second Avenue (and also the non-diocese of Pittsburgh) care not one whit for what they are doing to the courts and the law as they pursue their destructive march towards complete temporal power over all diocesan and parish property everywhere. They have an organization which since its inception has always been a confederation of independent dioceses, associated to make certain rules of conduct uniform throughout the Church (hah! -- just look at so-called "open communion"), and to agree upon matters of common worship and liturgy (hah! again -- just look at same-sex marriages and blessings). When a diocese and its members balk at the introduction of such disrupting novelties and uncanonical acts, and refuse either to participate in or to support their practice and propagation, these activists go to the courts, who are completely unschooled in these matters, and sell them a bunch of untruths and hocus-pocus. "We are The Church," they say, "and you must accept as definitive anything we say about Our Church, because, you see, we are The Church."

It is so circular and ridiculous that it ought to be laughed out of court. But as you see, the entity historically known as "The Protestant Episcopal Church in the United States of America" carries a lot of historical momentum with it. Its members have more Presidents of the United States to their credit than do the members of any other religious denomination -- to say nothing of countless more Senators, Representatives -- and Supreme Court Justices. So the courts tend to defer to the Church in court, and not to look too closely at the balderdash it sells to them. And the result is the legal mishmash such as we currently have in the Pittsburgh litigation.

The activists not only create the messes, but they trumpet their results as though they were on a par with the Ten Commandments, and demand that all those on the losing side of their machinations -- the ones who try to follow the canons and the Book of Common Prayer as written -- immediately and unconditionally capitulate to their ill-begotten "victory." Witness Exhibit A: this statement in response to the appeal published by the Non-Episcopal and Non-Diocese of Pittsburgh. It is so arrogant and supercilious that I shall slice it and dice it, right here in front of your eyes (bold emphasis added; the sickly green color appears mysteriously whenever I stuff and mount a specimen of canonical absurdity, as I explained here):

Attorneys representing the former leaders of this diocese are seeking to appeal the decision of the Court of Common Pleas of Allegheny County . . .

. . . that determined the rightful trustee of diocesan assets to be the continuing Episcopal Diocese of Pittsburgh of the Episcopal Church in the United States, which is currently led by Bishop Kenneth L. Price, Jr.

This is all the proof I need to show how you are spinning the fact that Judge James swallowed -- hook, line and sinker -- your fish story about how "people can leave the Church, but Dioceses cannot." You have derived the above language from the last paragraph of Judge James's decision and order of October 6, 2009 -- no doubt because you approve of his use of the word "rightful". But you could not rest content with that, could you? No, you had to improve on what Judge James said, and make it appear as though he ruled that the "rightful trustee" of the diocesan assets was the continuing Episcopal Diocese of Pittsburgh.

And that is just the problem: because the word "continuing" was not in Judge James's lexicon that day. Here are the words he used instead: "The defendants [meaning Bishop Duncan and his Diocese] could not extinguish an entity that was created and recognized by the intervenors [meaning ECUSA -- bold added for emphasis]." And he was correct to say that your entity -- the new non-Episcopal non-Diocese of Pittsburgh -- was "created and [then] recognized by ECUSA" -- in the days following the vote by the Diocesan Convention on October 4, 2008 to realign. For ECUSA, despite your fish story, did not "create" the original Diocese of Pittsburgh; it merely recognized it, and accepted it into union with General Convention, after it had been created by its organizers out of the Diocese of Pennsylvania, which had preexisted (P)ECUSA. But ECUSA most certainly did "create and recognize" you -- which is why you are not the continuing Diocese of Pittsburgh.

We are disappointed that those leaders have chosen to continue legal action on a matter that Judge Joseph James of the Common Pleas Court determined last October was settled long ago, in an October 14, 2005 Stipulation and Court Order that was "clear and unambiguous."

In other words, having sold Judge James on your poppycock and balderdash, you expect to have the same success in the Commonwealth Court, and that your "former leaders" had just better throw in the towel right now? The only proper response to such overweening arrogance is that made by John Paul Jones, long ago: "I have not yet begun to fight!"

The 2005 Stipulation and Court Order was a court-approved agreement stating an “amicable resolution” to litigation over the control of property in the event of a separation from the Episcopal Church. . . .

What a concoction of spin! Yes, the October 2005 "amicable resolution" of your lawsuit was fashioned so as to deal with property issues in the event of "a separation from the Episcopal Church" -- but it was the anticipated (in 2005) separation of individual parishes, and not the separation of the Diocese itself. Look at the text of the Stipulation again.

The undisputed evidence shows that the former diocesan leaders who are now seeking to appeal agreed in 2005, through their attorneys, that the property would remain with the Episcopal Diocese “regardless of what circumstances might arise.”

The parties agreed in the 2005 Stipulation that “their claims in this action have been settled and resolved” and Judge James has ruled the Stipulation means what it says. . . .

No, he did not rule that "the Stipulation means what it says." He ruled that the Stipulation -- which is ambiguous, and susceptible of at least two different meanings, meant what you claimed it said -- even though, when it was drafted, the only concern on the part of Calvary's attorneys was that other parishes might leave the Diocese. (You -- meaning you, the non-Episcopal, non-Diocese of Pittsburgh responsible for this statement, were not even around back then, remember? You were not even a gleam in Dr. Simons' eye.)

We will continue to enforce the 2005 agreement, and will respond with an appropriate defense within the courts.

No you won't. The one thing the appeal means is that the order to enforce the 2005 agreement is suspended pending the outcome of the appeal. And good luck trying to tell the banks and other non-parties to the lawsuit what the court "ordered" them to do.

I should apologize for being so testy with my fellow Christians in Pittsburgh. It's just that when they take off their collars and go into the law courts, they become -- well, so un-Christian. It is impossible for me to see any Christian charity and goodwill in a position that makes a mockery of the Constitution and Canons of ECUSA -- all so that they can argue that those documents mean something which they expressly do not say (just like the October 2005 stipulation). They are denying the heritage that gave them birth, and nothing good can come of it in the long run. Their only success -- and it can be called a "success" only in an ironical sense -- will be to transform ECUSA into a monolithic and metropolitical church, under one supremely arrogant and arbitrary metropolitan bishop to rule over all its clergy, and an equally arrogant and arbitrary leader to decree how its laity must conform themselves in every parish across the country. It will then have turned into the precise opposite of what it started out to be.

Friday, February 26, 2010

This morning I determined to follow up on my modest proposal to solve the country's health care problems with a TED talk about medicine. However, while I was researching this talk (from TEDMED last October -- a special gathering of TED for physicians), I saw that over at Treading Grain, the Rev. Steve Wood posted a short video about the "ThyPhone" -- the latest and greatest adaptation of the cellphone to daily activities (in this case, prayer). I would urge you to watch it as a gently satirical, but fantastical, introduction to the reality presented in the talk below.

Eric Topol is a cardiologist who directs the Scripps Translational Science Institute at La Jolla, California. The Institute trains physicians and scientists for medical research by combining clinical investigation with scientific theory, augmented by the latest technology.

In the talk below, he shows some of the amazing technological advances using cellphones and other wireless devices which are allowing people and their physicians to monitor their health. The implications for subjects like Alzheimer's, asthma, breast cancer, depression, diabetes, heart irregularities, hypertension, obesity and sleep disorders are nothing short of startling:

You may watch Dr. Topol's talk in its high-resolution version at this link, where you will be able to view his slides better. There is a brief bio of him, with more links, at this page. And you may download this talk in mp4 and other formats from this page.

Thursday, February 25, 2010

As I have pointed out on this blog before, some of the most astute and knowledgeable commentary you can read about the current health care proposals and their progress (or lack thereof) through Congress is over at Keith Hennessey's blog (also linked at the right, in the "Cannon Fodder" section). I took particular note of this remark in a post of his last month, just after he had explained in detail just how the "reconciliation" process could take place (I have added the bold, for emphasis):

The above option [reconciliation, using two bills -- one in each House] has a huge advantage: it requires only 50 Senate Democrats to concur. It therefore avoids the [Scott] Brown problem and the ongoing Nelson/Lieberman risks. This scenario works procedurally if you have a rock-solid unified (218 House + 50 Senate) alliance. This option allows up to 9 Senate Democrats to “walk” and vote no on the reconciliation bill, so the vote counting challenge shifts to the House.

But as one expert said, there are too many potential failure points in this strategy.

As I wrote this weekend, the Democrats’ challenge is not procedural. Their challenge is keeping cohesion within their legislative alliance when it is under massive political strain. Remember that Republicans, who are procedurally almost irrelevant in this strategy, would be pounding away rhetorically as we approach Election Day.

The ongoing "summit conference" at Blair House, taking place as I write, is demonstrating the truth of this observation. The Republicans' ideas and proposals are going nowhere, as far as the Democrats are concerned. But the Democrats are not yet unified behind a single piece of legislation which they could call their own.

Well, I have a modest suggestion to break this logjam. It offers the perfect win-win solution for everyone -- the Democrats get their universal healthcare (public) option, and the Republicans get their private plans, too.

How can this be? you ask. Please pay attention, now:

1. Universal health care at public expense will be provided to all registered Democrats, and only to registered Democrats. If you are not registered to vote as a Democrat, you cannot qualify for the "public option" (whatever they decide that is).

2. All other voters, both registered and unregistered, Republicans, Independents, American People's Party -- whatever -- will have to purchase healthcare in the private market.

3. And now, this is the kicker: while the public option is free to anyone registering as a Democrat, its value must be declared and reported as income. That is, the Government will send every registered Democrat a Form 1099 each year for the actual pro-rata cost of the "public option" plan. (Devices like the Earned Income Credit can be used to keep any undue tax burdens from falling on the lowest income sectors. But George Soros, Bill Gates, Warren Buffett, Steve Jobs and all the other wealthy Democrats will have to pay tax on every dime of benefit they receive.)

4. Meanwhile, all purchasers of private health care plans may deduct that cost from their taxable income. That means that the purchasers of private insurance -- all but registered Democrats -- will subsidize the public plan a little bit, but then the Democrats will also be subsidizing by the same little bit the cost of private healthcare. So it is fair and square all around.

It is simple, and is easily enacted into law. It should pass in a heartbeat, because both parties would get what they most want. And then -- here is the beauty behind it -- the market will take over. There will be plenty of demand for custom private plans (the enacting legislation will also strike down the restrictions by States on what insurance can be sold within their borders). And, since there are plenty of registered Democrats, there will be plenty of demand for the public option as well.

It is true that if you can't afford to buy health insurance, you do have to (maybe hold your nose and) register as a Democrat. But hey -- you get to have a say in what the party decides to offer you, and no one will ever know how you voted inside the voting booth. (And the party leaders should love the resulting increases in registered Democrats in every State.)

And here is another benefit: since all Democrats in Congress are registered with their party, they are automatically enrolled in the same plan they are offering to everyone else in their party. The only members of Congress who will not be able to get free public health insurance will be the Republicans, the Independents, and the Socialists -- they will have to purchase and pay for it themselves, and not out of the public purse. The only "Cadillac" health care plans available for members of Congress will be either (a) the public option, if they are Democrats, or (b) the same private options that are available across the country for non-Democrats, as determined by the market.

And now, one final point behind this proposal. Ask yourself this question: Why would any Democrat turn this proposal down? It gives them everything they want -- for their own kind.They get to design it, and control it from start to finish; they can create as many or as few bureaucracies as they want to administer it. It's their baby.

So if we should see this proposal rejected (for whatever stated reason) by the Democrats, then they will be saying: "It's not enough for us to have what we want -- we want to make you have it, too." And that, in turn, will tell you all you need to know about why they really want "health care reform".

What do you think? Let's spread the word, and get this idea off the ground.

Wednesday, February 24, 2010

(ENS, Prairie City) In a joint statement earlier today, Presiding Bishop Katharine Jefferts Schori and House of Deputies President Bonnie Anderson announced the founding of Episcopal Verities, a new peer-reviewed Internet journal dedicated to publishing "only the truth" about The Episcopal Church. "We see a great need, in this world where many Episcopalians are getting daily misinformation about their Church off the Internet, for a reliable and authoritative source of such information," the announcement said. "No article will appear on the Episcopal Verities website which has not first been reviewed and approved for publication by leading academics in the field," the announcement said. "Its Panel of Review has been hand-picked to ensure that only the truth, the whole truth, and nothing but the truth will pass muster on the site."

Asked in a press conference for the names of the academics on the Panel of Review, the Presiding Bishop responded: "Well, President Anderson has a Doctor of Divinity degree, for instance. Ian Douglas, soon to be Bishop of Connecticut, has both a Master's of Divinity degree and a Ph.D. Bishop Stacy Sauls has a law degree. And I myself have both a Master's and a Ph.D., as well." The reporter followed up that question by asking whether there would be any articles about oceanography appearing at Episcopal Verities. "Not oceanography as such, no -- but I know that one author is working on a study of invertebrates and their importance to Church polity. And that, as you may know," she added modestly, "is my specialty."

Asked to give an indication of the site's content, the Presiding Bishop ticked off some of the articles that will appear when the site goes online, probably by St David's Day (March 1):

"We are republishing the classic paper by Stacy Sauls on the "Proper Use of Abandonment Procedures for Bishops", she said. It turns out to be very timely, as we are in the middle of determining how best to apply those procedures in respect to a certain diocese-which-shall-not-be-mentioned-right-now. But just be patient, and you will see how the truth leads to informed action."

"And we are publishing a brand-new study designed to help Episcopal parishes reverse the declining trends in their membership," President Anderson noted. "It is based on our recent discussions in Omaha, and will be called: "Why Are You There? Invitation as a Means of Expressing Your Episcopalness to Others. And I am proud to say that I contributed the section called 'The Top Ten Reasons to Get out of Bed on Sunday Morning'."

At that point, the Presiding Bishop looked at her Chancellor, and smiled as she said, "And I know you will all be delighted to hear that Episcopal Verities has entered into a contract for the exclusive publication rights to The Collected Sermons of David Booth Beers. We are beginning the series with the sermon David gave in the Cathedral in Omaha last Sunday. You will remember that he spoke without a text, but fortunately we recorded it, and it is being transcribed for publication as we speak."

"In sum, we hope to bring a new level of meaning to the term 'peer-reviewed'," the Presiding Bishop concluded. "Episcopalians will finally be able to go to a site on the Web where they can get the unvarnished truth, as vetted by all those who are the very best of peers. I mean --" she went on, "of course, all of us are peers, but you have to admit that some are better peers than others. And it is only the very best who will have the chance to make a splash in the pages of Episcopal Verities."

"So, watch for the site to be up and running by March first," she concluded. "St. David will be our patron saint in this venture, as a teacher known for his humility. (I owe that idea to Rowan, actually -- he suggested we make St. David the patron for our new venture. And by the way, he's offered to contribute an article, too, tentatively called "Keeping Everyone at the Table: Inter-covenantal Relationships in Dostoevsky.") And in the Saint's honor, I am passing out to all of you a recipe for cawl, the traditional dish for his Day, along with a leek to make it yourselves at home."

And on that note, the impromptu conference ended. Everyone took a leek, and departed.

Monday, February 22, 2010

In a previous post I posed the question: What in the world is happening in the Diocese of South Carolina? Now, after a press conference today with the Presiding Bishop and the President of the House of Deputies, following the conclusion of the meeting of the Executive Council in Omaha, and as reported by Cherie Wetzel of Anglicans United, I think am starting to see the outline of an answer: what is going on is that we see history about to repeat itself. [UPDATE 02/24/2010: I have received a more accurate transcript of what was said during the press conference, and I have updated the quotes below to reflect that transcript. I am keeping the link to Anglicans United above, so that anyone who wishes may compare the two versions.]

Not only that, but it will apparently repeat itself with no lessons having been learned. This is all so unnecessary -- and the facts demonstrate, more than anything I could say or write, how severe is the crisis that engulfs the leadership of the Episcopal Church.

Let me first stick to just the facts, since as you will see, the essence of 815's rationale for taking the actions they have taken -- and apparently are further planning to take -- is that "facts are being distorted, and Episcopalians in South Carolina are not getting the truth." Here is a verbatim quote from the press conference:

Doug LeBlanc,The Living Church: The Episcopal News Service reported on Friday that the Presiding bishop spoke about tensions in the Diocese of South Carolina. She asked members of Executive Council to pray for the people of the Diocese. I would like to ask both presiding officers what sort of breakthroughs do you hope for as people pray about the conflict.

PB [the Presiding Bishop]: I would certainly hope that Episcopalians in South Carolina have a clear understanding of the realities of the Episcopal Church and they don't depend on erroneous information.

ANDERSON [President, House of Deputies]: I would agree with that. I am also in contact with some of the deputies from the Diocese of South Carolina, and the continued struggle for clear and accurate information for prayerful decision making for support all across the church is needed and asked for on a continuing basis.

And just in case you did not receive the message loud and clear, here is another exchange:

George Conger, reporter at large [and Church of England Newspaper] to the PB and President: Both of you spoke about erroneous information at work in South Carolina. Could you speak to what exactly this erroneous information is? Are you speaking of the work of the Anglican Communion Institute or of other parties? What is this erroneous information?

PB: Episcopalians, like many others who use the Internet, often seek information in places where information is not peer reviewed. They rely on opinions rather than factual information. I think there is a lot of fear and anxiety at work within the Diocese of South Carolina. There are representations of the theology of the Church was a whole that I think are inaccurate. There are representations of processes within the Church that are often inaccurate. And I would simply encourage people who have questions to look more broadly, to ask the bodies of the Episcopal Church for more information if they are uncertain.

ANDERSON: Yes, I would agree with that. As you know there have been situations in which information across dioceses where there are been disagreement there have been an influx of information coming from sources one way or the other and I think it is really important, as Bishop Katharine has stated, for people who are going to be voting on something make sure they have accurate information on anything that is before them. Anything as simple as -- and this is just an example and I am not saying this will come up in particular instance -- can a diocese leave The Episcopal Church? What is the process for those kinds of concerns and making sure that we know and everyone knows what we have agreed to in terms of General Convention over the years when we were all carefully walking this path together. And I hopefully we can continue to do that.

Now, just what is this misinformation and ill-informed opinion that is being broadcast to Episcopalians in South Carolina? Here is a third exchange from the conference, which provides a clue:

Mary Ann Mueller for VirtueOnline: The Episcopal Church has gone after traditionalists with a vengeance and now you are zeroing in on South Carolina, the same God-fearing Episcopalians who have been the backbone of the Church since the its colonial foundation in 1706, more than 300 years ago. Apparently, Presiding Bishop, you have retained an attorney to deal with local matters. What are those local matters and how are you going to deal with them?

PB: My understanding is that Episcopalians in South Carolina have expressed concern about some who have departed The Episcopal Church and attempted to maintain control of Episcopal Church assets. They have asked for some assistance because the Church as whole has some responsibility.

"Those who have departed"?? The fact isthat the only parish to have left the Diocese of South Carolina to date is All Saints Waccamaw, on Pawley's Island -- and it did so in 2003 -- some seven years ago. Its right to do so was recently affirmed by South Carolina's highest court (although certain vestry and parish members who disagree with that decision have asked the United States Supreme Court to review it). This is hardly -- how shall this Westerner put it? -- a stampede.

And how can the Presiding Bishop describe Waccamaw's victory in the South Carolina Supreme Court as an attempt to maintain"control over Episcopal assets"? My goodness and sakes alive, as my sainted grandmother was fond of saying. To think that there would be current Episcopalians in South Carolina who might actually choose to accept and follow the ruling by the highest Court of that State -- which held, just so that we stick to the facts, now -- thatthe Dennis Canonwas legally insufficient to create on its own any beneficial interest in a parish's property and in favor of the Diocese or the national Church.

Do I have this right?? The Presiding Bishop of the House of Bishops and the President of the House of Deputies are concerned that Episcopalians in South Carolina are not being told "the truth" about the South Carolina Supreme Court's decision? That despite what the Supreme Court ruled, Episcopalians in South Carolina are entitled to retain control over the assets of those who elect to leave the Diocese? And that the President of the House of Deputies believes "that is [w]hat we have agreed to in the General Convention over the years"??

Were I not absolutely convinced of the faithfulness with which Cherie Wetzel transcribed these words, I would find myself doubting my own sanity. For -- let it now be said -- this is unsound; this makes no sense whatsoever. If the current leadership of the Episcopal Church believes so strongly that they are right and the Supreme Court of South Carolina is wrong, then why did not ECUSA itself ask the Supreme Court to review the case? Why did it expect a few dissident Waccamaw parishioners to carry that burden?

What we see happening right now in South Carolina is the kind of craziness that began in the Diocese of Pittsburgh in 2003 -- long before the terms of either of the current presiding officers of the Church began. As I have recounted in a series of posts dealing with the litigation in that Diocese, everything began with a suspicion on the part of certain clergy and parishioners associated with Calvary Church that Bishop Duncan was preparing to allow other parishes who disagreed with the impending consecration of V. Gene Robinson to leave the Diocese and to keep their parish property. So they filed suit against Bishop Duncan to prevent him from doing just that.

And the result, five years later, was not that any individual parishes left the Church, but that the entire Diocese voted to leave the Church -- after the (current) leadership at 815 had broken the canons multiple times to "depose" the Right Rev. Robert Duncan, its bishop.

But Bishop Duncan did not have any binding precedent of the Pennsylvania Supreme Court on his side -- in fact, what precedent there was had held in favor of the Dennis Canon. Here we have the exact opposite.

"[Mis]information", my eye. This is not about misinformation at all, but about power -- absolute and unchecked power (because the House of Bishops is too cowardly to insist as a group that the canons of the Church be strictly followed when it comes to deposition of their colleagues), which corrupts absolutely, as Lord Acton famously reminded us.

If the leadership at 815 embarks on a Calvary-inspired harassment of the Rt. Rev. Mark Lawrence and the Standing Committee, then I repeat what I said in my earlier post:

This is a watershed moment for both those at 815 Second Avenue and their supporters, as well as for all those who are trying to hold on to a presence in the Episcopal Church despite its current tyrannical ways. Fortunately, their very arguments based on a "trust" in favor of the national Church may be turned against them -- if each parish owes perpetual allegiance to the national Church, then the leadership of that Church owes fiduciary duties to each and every diocese and parish. Those fiduciary duties are very clear, and do not admit of any waffling or tergiversation. Depending on how this all plays out, there will either be a very clear case for breach of fiduciary duties, or not.

If ECUSA did not learn from the current debacle in Pittsburgh -- where the law ostensibly was in its favor -- then it is doomed to repeat in South Carolina the mistakes it made there. And if no other dioceses will stand behind South Carolina in its travails, then I miss my guess, and the Episcopal Church is truly not worth the paper its constitution was written on. All that will then remain will be a metropolitical Church under an arbitrary figurehead. After some 220 years, judgment will then fall on the Protestant Episcopal Church in the United States of America.

Ah, well -- someday, it will all make a great book. Forsan et haec olim meminisse iuvabit.

Saturday, February 20, 2010

Greece, which gave birth to democracy, is now enduring its greatest test. Long ago, no less than four of its greatest philosophers traced out the historical kyklos, or cycle, through which forms of government evolve. They differed in particulars, but Socrates, Plato, Aristotle and Polybius all agreed on the progression: people organize first under a strong leader, and make him a king. As power corrupts, the king becomes a tyrant, and on his death, power passes to his children, who may share in a form of government known as oligarchy. As the children pass on privileges to their children and grandchildren, government by aristocracy emerges. Over time, the qualifications to vote and participate in government broaden, until every citizen is included, and there is now a democracy. But when the majority discovers that it is able to vote itself special privileges, this starts a self-destructive process which can end only in mob rule, and anarchy. Out of the chaos emerges a strong ruler; the people make him a king, and the cycle begins anew. (If you have Flash installed in your browser, you may watch the cycle illustrated at this link; the text is based on Polybius.)

Polybius, in particular (followed by Machiavelli in the Renaissance), traced the sequence of events by which a democracy gradually deteriorates, in Book VI of his Histories:

That all existing things are subject to decay and change is a truth that scarcely needs proof; for the course of nature is sufficient to force this conviction on us. 2 There being two agencies by which every kind of state is liable to decay, the one external and the other a growth of the state itself, we can lay down no fixed rule about the former, but the latter is a regular process. 3 I have already stated what kind of state is the first to come into being, and what the next, and how the one is transformed into the other; so that those who are capable of connecting the opening propositions of this inquiry with its conclusion will now be able to foretell the future unaided. And what will happen is, I think, evident. 5 When a state has weathered many great perils and subsequently attains to supremacy and uncontested sovereignty, it is evident that under p399the influence of long established prosperity, life will become more extravagant and the citizens more fierce in their rivalry regarding office and other objects than they ought to be. 6 As these defects go on increasing, the beginning of the change for the worse will be due to love of office and the disgrace entailed by obscurity, as well as to extravagance and purse-proud display; 7 and for this change the populace will be responsible when on the one hand they think they have a grievance against certain people who have shown themselves grasping, and when, on the other hand, they are puffed up by the flattery of others who aspire to office. 8 For now, stirred to fury and swayed by passion in all their counsels, they will no longer consent to obey or even to be the equals of the ruling caste, but will demand the lion's share for themselves. 9 When this happens, the state will change its name to the finest sounding of all, freedom and democracy, but will change its nature to the worst thing of all, mob-rule.

I was reminded of the kyklos, and of the problems to which a democracy is susceptible, on reading this article by Anita Acavalos at The Cobden Centre: "I Predict a Riot." A native of Greece, Ms. Acavalos is the daughter of Andreas Acavalos, a longtime management and organization specialist with PricewaterhouseCoopers in Athens who now serves on the Advisory Board of the Cobden Centre. She astutely traces and analyzes the multiple sources and factors in Greece's current economic woes, which threaten to bring down the Euro. She begins by making this key point:

In recent years, Greece has found itself at the centre of international news and public debate, albeit for reasons that are hardly worth bragging about. Soaring budget deficits coupled with the unreliable statistics provided by the government mean there is no financial newspaper out there without at least one piece on Greece’s fiscal profligacy.

Although at first glance the situation Greece faces may seem as simply the result of gross incompetence on behalf of the government, a closer assessment of the country’s social structure and people’s deep rooted political beliefs will show that this outcome could not have been avoided even if more skill was involved in the country’s economic and financial management.

And what are these "deep rooted political beliefs"? Listen to her explain:

The population has a deep rooted suspicion of and disrespect for business and private initiative and there is a widespread belief that “big money” is earned by exploitation of the poor or underhand dealings and reflects no display of virtue or merit. Thus people feel that they are entitled to manipulate the system in a way that enables them to use the wealth of others as it is a widely held belief that there is nothing immoral with milking the rich because they are commonly perceived to be everything that is wrong with Greek society. In fact, the money the rich seem to have access to, is the cause of much discontent among people of all social backgrounds for example farmers and students. The reason for this is that the government for decades has run continuous campaigns promising people that it has not only the will but also the ABILITY to solve their problems and has established a system of patronages and hand-outs to this end.

Anything can be done in Greece provided someone has political connections, from securing a job to navigating the complexities of the Greek bureaucracy. The government routinely promises handouts to farmers after harsh winters and free education to all; every time there is a display of discontent they rush to appease the people by offering them more “solutions.” What they neglect to say is that these solutions cost money. Now that the money has run out, nobody can reason with an angry mob.

Do you hear echoes of the passage from Polybius which I quoted above? Having voted itself the benefits of a free university education, the masses no longer appreciate or value those benefits, with the result that few are truly educated any more:

A closer examination of Greek universities can be used as a good illustration of why and HOW the government has driven itself to a crossroad where running the country into even deeper debt is the only politically feasible path to follow. University education is free. However, classroom attendance is appalling and there are students in their late twenties that still have not passed classes they attended in their first year. Moreover, these universities are almost entirely run by party- political youth groups which, like the country’s politicians, claim to have solutions to all problems affecting students. To make matters worse, these groups often include a minority of opportunists who are not interested in academia at all but are simply there to use universities as political platforms, usually ones promoting views against the wealthy and the capitalist system as a whole even though they have no intellectual background or understanding of the capitalist structure.

The divide between factions favoring "big business" and those favoring "big government" is really no divide at all, because both factions believe that the business of government is to bring benefits to the masses:

This problem is exacerbated by the fact that there is no genuine free market opposition seeing as in Greece, right wing political parties also favour statist solutions but in their case those solutions are criticised as favouring big business as opposed to increasing government provision for the care of the people, which is the role of the left. The mere idea that the government should be reduced in size and not try to have its hand in everything is completely inconceivable for Greek politicians of all parties. The government promises their people a better life in exchange for votes so when it fails to deliver, the people naturally think they have the right or even the obligation to start riots to ‘punish’ them for failing to do what they have promised.. . .Moreover, in line with conventional political theory on patronage networks, in regions that are liable to sway either way politicians have a built-in incentive to promise the constituents more than everyone else. The result is almost like a race for the person able to promise more and thus the system seems by its very nature to weed out politicians that tell people the honest and unpalatable truth or disapprove of handouts. This has led people to think that if they are in a miserable situation it is because the government is not trying hard enough to satisfy their needs or is favouring someone else instead of them. When the farmers protest it is not just because they want more money, it is because they are convinced (sometimes even rightly so) that the reason why they are being denied handouts is that they have been given to someone else instead. It is the combination therefore of endless government pandering and patronages that has led to the population’s irresponsible attitude towards money and public finance. They believe that the government having the power to legislate need not be prudent and when the government says it needs to cut back, they point to the rich and expect the government to tax them more heavily or blame the capitalist system for their woes.

Ms. Acavalos then quotes Greece's current political leader, and shows how he is clueless as to the source of all the problems:

After a meeting in Brussels, current Prime Minister George Papandreou said:

Salaried workers will not pay for this situation: we will not proceed with wage freezes or cuts. We did not come to power to tear down the social state.

It is not out of the kindness of his heart that he initially did not want to impose a pay freeze. It was because doing so would mean that the country may never escape the ensuing state of chaos and anarchy that would inevitably occur. Eventually he did come to the realisation that in the absence of pay freezes he would have to plunge the country into even further debt and increase taxes and had to impose it anyway causing much discontent. Does it not seem silly that he is still trying to persuade the people that they will not pay for this situation when the enormous debts that will inevitably ensue will mean that taxes will have to increase in perpetuity until even our children’s children will be paying for this? This minor glitch does not matter though because nobody can reason with a mob that is fighting for handouts they believe are rightfully theirs.

What is particularly troubling about all this are the parallels I begin to see emerging in our own democracy. As you read her next paragraph, compare what she is describing to the current proposals in Congress to spend our way out of a depression -- an approach that entails ever more borrowing, and ever more taxation:

Greece is the perfect example of a country where the government attempted to create a utopia in which it serves as the all- providing overlord offering people amazing job prospects, free health care and education, personal security and public order and has failed miserably to provide on any of these. In the place of this promised utopian mansion lies a small shack built at an exorbitant cost to the taxpayer, leaking from every nook and cranny due to insufficient funds which demands ever higher maintenance costs just to keep it from collapsing altogether. The architects of this shack, in a desperate attempt to repair what is left are borrowing all the money they can from their neighbours, even at exorbitant costs promising that this time they will be prudent. All that is left for the people living inside this leaking shack is to protest for all the promises that the government failed to fulfil; but, sadly for the government, promises will neither pay its debts nor appease the angry mob any longer. Greece has lost any credibility it had within the EU as it has achieved notoriety for the way government accountants seem to be cooking up numbers they present to EU officials.

In that description of Greece's economic woes I see also America's future if our politicians continue to think that the way to create new jobs and to boost the economy is by higher taxes and increased borrowing so that government can pump more money into the system. This solution robs our most productive sectors of their ability to invest and grow, and doles out money to those with political connections who simply use it to fatten their compensation packages. And it saddles our government with an ever-mounting interest burden, which the politicians are passing on to future generations.

Ms. Acavalos has not lost all hope; she sees in Prime Minister Papandreou a man who has the fortitude to face down the masses, if he will only realize that time is running out:

There are no magic wands, no bail-outs, no quick and easy fixes. The choice is between doing what it takes to put our house in order ourselves, or watching it collapse around us. This can only come about if Prime Minister George Papandreou uses the guts he has displayed in the past when his political stature and authority had been challenged and channels them towards making the changes the country so desperately needs. Only if he emerges as a truly inspired statesman who will choose the difficult as opposed to the populist solution will Greece be up again and on a path towards prosperity. He needs to display a willingness to clean up the mess made after years of bad government and get society to a point where they are willing to accept hard economic truths. One can only hope…

I see no one in current government in this country who has the ability, or the will, to turn us aside from the destructive path we are on. One has to hope that the choices we will be offered in 2012 are better than those offered in 2008. And one has to hope that the voters will be wiser in 2012, as well. For if neither of those hopes materializes, then America will become another textbook illustration of what Socrates, Plato, Aristotle and Polybius described for us so long ago.

[UPDATE 02/27/2009: Don't miss Mark Steyn's take on the situation -- written in his inimitable style. Here's a sample, but be sure to read the whole piece:

The United States has a fertility rate of around 2.1 — or just over two kids per couple. Greece has a fertility rate of about 1.3: Ten grandparents have six kids have four grandkids — ie, the family tree is upside down. Demographers call 1.3 “lowest-low” fertility — the point from which no society has ever recovered. And, compared to Spain and Italy, Greece has the least worst fertility rate in Mediterranean Europe.

So you can’t borrow against the future because, in the most basic sense, you don’t have one. Greeks in the public sector retire at 58, which sounds great. But, when ten grandparents have four grandchildren, who pays for you to spend the last third of your adult life loafing around?. . .

Think of Greece as California: Every year an irresponsible and corrupt bureaucracy awards itself higher pay and better benefits paid for by an ever-shrinking wealth-generating class. And think of Germany as one of the less profligate, still-just-about-functioning corners of America such as my own state of New Hampshire: Responsibility doesn’t pay. You’ll wind up bailing out anyway. The problem is there are never enough of “the rich” to fund the entitlement state, because in the end it disincentivizes everything from wealth creation to self-reliance to the basic survival instinct, as represented by the fertility rate. In Greece, they’ve run out Greeks, so they’ll stick it to the Germans, like French farmers do. In Germany, the Germans have only been able to afford to subsidize French farming because they stick their defense tab to the Americans. And in America, Obama, Pelosi, and Reid are saying we need to paddle faster to catch up with the Greeks and Germans. What could go wrong?

Friday, February 19, 2010

Peter Eigen is the founder and head of Transparency International, a non-governmental organization dedicated to stopping the developed world and its companies from responding to bribery demands from the developing world and its leaders. The TI website has this simple definition of corruption:

What is corruption? Corruption is the abuse of entrusted power for private gain. It hurts everyone whose life, livelihood or happiness depends on the integrity of people in a position of authority.

As he explains in this Friday's TED talk (given last summer at a user-organized TED conference held in Berlin), he saw the results of bribery and corruption firsthand during the years he served as a manager for the World Bank in Nairobi, Kenya:

You may read more about Peter Eigen at this page, and you may catch up on the latest exposures of fraud and bribery on the updates page of Transparency International at this link. Download Peter Eigen's talk from this page.

Wednesday, February 17, 2010

When the motion expressing a desire to be in communion with ACNA was before General Synod last week, Simon Sarmiento of Thinking Anglicans was instrumental in laying before its members a position paper which made the following claim in rebuttal to a paper that had been circulated by Synod member Lorna Ashworth:

The [Ashworth] paper misleadingly claims as follows:

Lawsuits Concerning Property

. . .

In the United States, a particularly unpleasant aspect of litigation has been the willingness of TEC and some dioceses such as San Diego and Los Angeles to sue individual vestry (the American equivalent of PCC) members of departing congregations, in addition to the parish corporations of which they were trustee members. Litigation of this kind has the consequence of putting at risk of forfeiture the personal bank accounts, savings and homes of lay church officers. Some have had difficulty in refinancing their mortgages (as defendants in a personal financial lawsuit) and have had their credit ratings put in jeopardy.

. . .

The paper complains about the liability vestry members may encounter when their congregation moves to disassociate from the Episcopal Church. While acknowledging that this is the law in Canada, the author appears not to understand that it is also the law in much of the United States (again, such matters vary from state to state but the liability of vestry members for their corporate acts is a matter of civil law not church law.) In those states where this is the case, vestry members are generally covered by Directors and Officers Liability Insurance, for that very reason. In fact, it is contrary to the policy of The Episcopal Church to seek financial remedies from laypersons, and it has never done so.

It is Mr. Sarmiento who misled the members of General Synod, not Ms. Ashworth. Notice first of all that he evaded Ms. Ashworth's point. She asserted that the Church's lawsuits named individual vestry members as defendants, and he responded that such defendants are "generally covered" by insurance. (That has not been my experience in any church litigation with which I have been associated; only the largest Episcopal parishes can afford to budget for such insurance.) He does not deny that individual vestry members are named, but claims that no damages are sought against them.

This is, as I say, highly misleading. Any individual named in a lawsuit can be held liable for costs if he or she ends up losing; such costs in protracted cases (such as the Dennis Canon ones usually are) can run into the many thousands of dollars. And for an example where ECUSA sought $500,000 plus additional damages from a church's law firm, one needs look no further than this earlier post. (The pseudo-diocese of San Joaquin has carried on the tradition by naming the individual vestry members and rector of St. Francis' Anglican parish in Turlock as defendants in its latest lawsuit. The plaintiff Bishop Lamb made a point of telling his flock that it "is not a suit against any individuals." But the story about the suit linked earlier has a copy of the complaint which you may download, and see for yourself that the defendants named [scroll down to page 5] include the rector and nine vestry members, who are sued "as individuals". Those individuals still need to pay an attorney to defend them [no insurance is applicable], and there is always, as I say, individual liability for court costs if they lose [see paragraph H. of the prayer for relief on page 24 of the complaint (page 28 of the document)].)

But now we have a different kind of response to ECUSA's bullying tactics -- one might even say that ECUSA has sued one vestry member too many. For one such vestry member whom the Church named in a lawsuit to recover a parish's property in San Angelo, Texas is also an attorney: his name is Mark Brown. And in his capacity as an attorney, Mark Brown has filed an amicus brief in the writ proceeding currently pending before the Court of Appeals in Fort Worth.

It is a brilliant brief, and may do far more damage to ECUSA's claims in that case than ECUSA has been able to do to Mr. Brown. So that you can read it in full, I have uploaded it to this link. But I will give you its highlights in what follows. It is a very clear and succinct response to the contentions which ECUSA made through Mr. Sarmiento and at General Synod -- which were the same as ECUSA is making to the courts in Fort Worth, San Joaquin, Pittsburgh and Quincy.

Mr. Brown opens his brief with three simple facts:

STATEMENT OF FACTS

1. The association that identifies itself as "The Episcopal Church" is a multinational, unincorporated amalgamation of over 100 non-uniform dioceses and other miscellaneous entities in the U.S., Venezuela, Colombia, Cuba, Taiwan, Europe, Haiti, Ecuador, Honduras, and the Dominican Republic (hereinafter "The Episcopal Church").

2. The Episcopal Church has no express provision in its organizational documents that prohibits dioceses from withdrawing from the association.

3. The Episcopal Diocese of Fort Worth withdrew from The Episcopal Church in 2008, placing it beyond any authority of The Episcopal Church.

I love the term "multinational, unincorporated amalgamation" which he uses to describe the Episcopal Church (USA). I shall have to start using it myself. Thank you, Mark Brown!

Next, he gives a short and pithy summary of his argument:

Texas has adopted the neutral-principles approach to church property disputes. Texas courts are constitutionally authorized to follow neutral principles of law, and to enforce the express organizational documents, by which the Episcopal Diocese of Fort Worth validly withdrew from The Episcopal Church. The position of The Episcopal Church, that courts may not question the great and powerful Oz; is as hollow as the wizard's famous declaration to Dorothy, and is wholly foreign to the rule of law.

That was just for openers. Now note the care with which Mr. Brown constructs his argument. It is in five parts, with this being a condensed version of the first part:

ISSUE 1 Diocese Has Common Law RightTo Withdraw From Association

The position of the Episcopal Diocese of Fort Worth headed by Bishop Iker (hereinafter "the Diocese") and its corporation, that they have withdrawn from The Episcopal Church, is supported by the common law and the First Amendment.

1. Common law gives right to withdraw. The common law of associations and contracts entitles a member to withdraw without the consent of the association.

A. Principle of association law. Ordinarily, an individual is free to resign from an association, subject to any financial obligations due and owing the group, and a by-law which restricts this right or makes the withdrawal subject to the organization's approval is invalid. 6 Am. Jur. 2d "Associations And Clubs" §26 (2009).

B. Presumption of contract law. Association law is grounded in contract law. The constitution and by-laws of an association are a contract between the members themselves and between the association and the individual member. Lundine v. McKinney, 183 S.W.2d 265,273 (Tex.Civ.App. - Eastland 1944, no writ); State of Oklahoma v. Gasaway, 863 P.2d 1189,1193-1194 (Okla. 1993).

Having established that association law is a matter of contract between its members, Mr. Brown next establishes a basic principle of contract law: nothing is perpetual unless you expressly make it so in the wording of the contract.

(i) Obligation in perpetuity must be unequivocally expressed. A contract will not be construed to impose an obligation in perpetuity unless the intention is unequivocally expressed and the language of the contract compels such construction. [Citations omitted.]

(ii) Continuing obligations indefinite in length are terminable at will. Contracts that contemplate continuing performance but are indefinite in duration can be terminated at the will of either party. [Citations omitted.]

Next, Mr. Brown supplies specific illustrations of these principles in the context of cases involving churches:

C. Common law presumptions can apply in church cases. In the landmark Jones v. Wolf, 443 U.S. 595, 607 (1979), where a congregation in Georgia had by majority vote elected to withdraw from the Presbyterian Church in the United States, the Court held that a common law rule (the presumptive common law rule of majority representation, which generally governs religious societies) would be consistent with neutral-principles analysis under the First Amendment, would avoid questions of religious doctrine or polity, and could be applied to determine which faction controlled a local parish in a hierarchical church.

. . . [T]he U.S. Supreme Court previously had recognized the right of congregations to withdraw from a general eldership in Maryland & Virginia Churches v. Sharpsburg, 396 U.S. 367, 367-368 (1970).

3. The Diocese's common law right to withdraw is unrebutted.

A. No express prohibition of withdrawal. Plaintiffs in this case have not shown that The Episcopal Church has any express prohibition of diocesan withdrawal that would override the common law right to withdraw.

B. Implied prohibition would not suffice, and would be forbidden by First Amendment. An implied prohibition of withdrawal would be inadequate to satisfy the contract law requirement noted above that membership in perpetuity be expressed unequivocally. Moreover, plaintiffs cannot ask the courts to search for an implied prohibition of diocesan withdrawal, for that would be a "searching and therefore impermissible" inquiry into church polity. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723 (1976).

Having laid out the law supporting a diocese's right to withdraw from the common-law association which is the Episcopal Church (USA), Mr. Brown then draws the logical conclusion: if the diocese withdrew from the Church as it had every right to, then it can no longer be subject to the reach of the Church. "The Episcopal Church's efforts in 2009 to remove Bishop Iker and the trustees were void ab initio," he writes. This fact also makes the cases on which the Church relies so heavily irrelevant to the argument:

In the Serbian Orthodox Church and Greek Orthodox Church cases cited by plaintiffs, where the hierarchy possessed express authority to remove a bishop of a diocese or trustees of a parish, respectively, that authority was exercised against a diocese and a parish that were still part of the hierarchical church. The diocese and parish had not withdrawn, and they therefore remained subject to whatever degree of ecclesiastical authority the highest church judicatory possessed. In the instant case, however, the Diocese has withdrawn, making this a property dispute between independent entities rather than an "internal" church matter.

The next part of Mr. Brown's argument is specific to Texas law, and shows how the courts in that State have adopted a "neutral principles" approach. I omit summarizing it here, and pass to his third point:

ISSUE 3Even If Texas Followed "Deference" Approach,Merely Being "Hierarchical"Does Not Entitle Church To "Deference"

1. No deference without tribunals and rules. Texas follows the neutral principles approach, as noted above. Even if Texas followed the "deference" approach, however, that approach would not automatically entitle a church to "deference" from the courts merely because the church was "hierarchical". Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-725 (1976). A church can be "hierarchical" and yet not have created appropriate hierarchical tribunals or internal rules to which a court can defer. The Milivojevich opinon concluded by holding:

[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them. [italics added]

In the instant case plaintiffs have not shown that The Episcopal Church has created any hierarchical tribunal with authority and rules to make the many purported adjudications trumpeted by plaintiffs.

2. Compulsory deference rejected. Plaintiffs argue over and over that courts must always defer to a church's decision, but the rule of "compulsory deference" was expressly rejected by the U.S. Supreme Court in Jones v. Wolf, at 605.

These are telling points, and are inarguable. General Convention is not a court, but a legislature. As such, it cannot "adjudicate" anything; it can only pass new resolutions and canons. Article IX of ECUSA's Constitution grants what adjudicatory powers there are in the Church to the ecclesiastical courts (which, however, have no jurisdiction over church property cases).

You can read points four and five in the uploaded document. Suffice it to say that in just fifteen brief pages, Mark A. Brown has sliced the heart out of 815's legal contentions, and exposed them for the hollow and unsupported propositions which they are.

The Wizard of Oz, indeed. Nice job, Mr. Brown! Consider the score between you and ECUSA more than even.

Whether the Free Exercise Clause of the First Amendment requires courts resolving a property dispute within a hierarchical church to give legal effect to a pre-existing trust provision in the church’s canons.

I see a number of problems with this petition, not least of which is the question-begging that the petitioners indulge in with their formulation of the issue presented for review. As it is phrased, the question assumes that the Church's Dennis Canon, which dates only from 1979, was a "pre-existing trust provision" for purposes of the property of All Saints Waccamaw.

This is incorrect. As you can see by reviewing the opinion of the South Carolina Supreme Court linked above (it may also be read in this Appendix to the Petition), the property of All Saints was first placed into a trust in 1745, some 234 years before the enactment of the Dennis Canon by General Convention 1979. However, the Supreme Court of South Carolina found that the trust imposed no legal duties on the "trustees", who had long since passed out of existence without ever being replaced. Consequently, it held that the Statute of Uses as in effect in South Carolina had "executed" (automatically extinguished) the attempted trust, so that the congregation of All Saints Waccamaw held the property in fee simple outright. (As an aside, one wonders how the Dennis Canon would fare under the Statute of Uses. For it, too, imposes no duties on the parish as "trustee" of its own property; it imposes only a condition that, as beneficiary, it remain in ECUSA.)

But the parish's title to its property had come into question as the result of a statute enacted by the South Carolina legislature in 1880. Accordingly, the parish sought and received the assistance of the Diocese in clearing up its title in 1903. As part of the process of re-establishing its good title to the property, All Saints received a new corporate charter in 1902, and the Diocese then quitclaimed to that corporation all of its right, title and interest in the property -- to the extent it might have had any -- by deed executed in 1903.

Thus it is a little disingenuous of the petitioners to portray the 1979 Dennis Canon as a trust interest that was "pre-existing" in 1903, when the Diocese conveyed to the parish all of its interest in the property.

But let us put that cavil to the side. I have issues with the petition which I believe are even more substantial. To understand them, it will be necessary to review a little more of the history of the South Carolina litigation.

There were two cases before the South Carolina Supreme Court. They were consolidated for purposes of argument and decision, but the fact is that they remain two separate cases. Here is the South Carolina Supreme Court's description of the first case:

The first lawsuit (“the 2000 Action”) was a declaratory judgment action filed by All Saints Parish, Waccamaw, Inc. against the Episcopal Church in the United States of America (“ECUSA”) and the South Carolina Diocese (“Diocese”). The 2000 Action was precipitated by the Diocese’s recording of a notice with the Georgetown County clerk of court by which it purported to put the public on notice that the congregation of All Saints Parish held its property in trust for the Diocese and ECUSA.

The second lawsuit began five years later:

After the congregation fractured, the second lawsuit (“the 2005 Action”) was filed by a minority faction of the original congregation against its majority which had voted to sever ties with the ECUSA and the Diocese. The minority faction remained loyal to the denominational authorities and was represented by a vestry led by Guerry Green (“the minority vestry”). The majority group was represented by a vestry led by W. Russell Campbell (“the majority vestry”). In the 2005 Action, the minority vestry sought a declaration that they, and not the majority vestry, were the officers of All Saints Parish, Waccamaw, Inc. [the religious corporation re-chartered in 1902].

It is important to keep these cases, and their respective parties, very clearly in mind for purposes of the analysis that follows. The first case was between the parish corporation as plaintiff (along with some wardens and vestry members as individuals representing the class of trust beneficiaries), and the Diocese of South Carolina and ECUSA, as defendants. The Diocese had recorded a claim of trust against the parish's title based on the Dennis Canon, and the parish filed suit to invalidate that claim. That suit did not involve any claims by the later vestry which has filed the current petition; that vestry did not come into existence until the minority parishioners (who wanted to remain with ECUSA) held an election for them in January 2005.

In the second lawsuit, filed by that minority vestry in 2005, the claim was made that they were the true vestry (directors) of the parish corporation, because (they alleged) the majority had disqualified themselves from any right to hold those positions when they voted to realign with the Anglican Province of Rwanda (through its American branch, AMiA). They claimed that the changes made to the parish articles were null and void. But in its September 18 decision, the Supreme Court of South Carolina ruled that those changes were valid under South Carolina's laws governing nonprofit religious corporations. It concluded that the minority vestry had no basis on which to claim that its members were the rightful directors of the parish corporation.

Thus we have two separate cases, which were consolidated for purposes of argument. The Supreme Court of South Carolina resolved both cases in a single opinion, which the minority vestry has now asked the United States Supreme Court to review. To do so, it sought and obtained an extension of time until February 15, 2010 within which to file its petition, which it now has done. But none of the other parties to the decision below -- ECUSA, the Diocese of South Carolina, or the majority vestry -- sought review from the Supreme Court. So what happens as to them, now that a petition for review has been filed?

Parties interested jointly, severally, or otherwise in a judgment may petition separately for a writ of certiorari; or any two or more may join in a petition. A party not shown on the petition as joined therein at the time the petition is filed may not later join in that petition. When two or more judgments are sought to be reviewed on a writ of certiorari to the same court and involve identical or closely related questions, a single petition for a writ of certiorari covering all the judgments suffices.

The last sentence just quoted would appear to mean that the petition filed by the minority vestry will suffice to bring into review the judgments in both of the consolidated cases, if those judgments are deemed to "involve identical or closely related questions." But do they? The judgment in the first case decided that the Dennis Canon did not create any valid trust interest in the parish's property under South Carolina law -- because under South Carolina law, a trust may be created in property only by the owner of that property, and neither the Diocese, nor ECUSA, nor the minority vestry owned the property at the time the Dennis Canon was purportedly enacted.

The judgment in the second case, on the other hand, decided that the minority vestry had no claim to be the directors of the parish corporation chartered in 1902. That was a decision based solely on provisions of South Carolina corporate law. That question cannot be considered as "identical" to the one in the earlier case: the two cases involve different parties at different times, and completely different rules of South Carolina law. Can they nevertheless be considered as "closely related"? Perhaps, insofar as they both turn on questions of the enforceability of ECUSA's canons under South Carolina law. But they still involve different canons, applicable to different parties at different points in time.

Thus my first big problem with the petition as filed is that, while it clearly could place the decision in the 2005 lawsuit under review, I do not see that it is an open-and-shut case that it could call the decision in the earlier (2000) lawsuit into review -- because the parties asking for review were not involved in that earlier decision, and the ones who were involved in it neither asked for the Supreme Court to review it, nor requested any extension of time within which to file a petition for such review.

But perhaps the issue will be moot, by virtue of this further provision in Rule 12 of the Supreme Court's rules:

All parties to the proceeding in the court whose judg­ment is sought to be reviewed are deemed parties entitled to file documents in this Court, unless the petitioner notifies the Clerk of this Court in writing of the petitioner’s belief that one or more of the parties below have no interest in the outcome of the petition. . . . A party noted as no longer interested may re­main a party by notifying the Clerk promptly, with service on the other parties, of an intention to remain a party. All parties other than the petitioner are considered respondents, but any respondent who supports the position of a petitioner shall meet the petitioner’s time schedule for filing documents, except that a response supporting the petition shall be filed within 20 days after the case is placed on the docket, and that time will not be extended. Parties who file no document will not qualify for any relief from this Court.

As I read this language, ECUSA and the Diocese of South Carolina may still become parties to the case in the United States Supreme Court if they file "a response supporting the petition . . . within 20 days after the case is placed on the docket, and that time will not be extended." (Emphasis added.) If they do not so file, they "will not qualify for any relief from this Court."

This raises some very interesting issues. First of all, the Diocese of South Carolina did not seek original review of the decision against it within the original deadline for requesting such review from the U.S. Supreme Court, which expired 90 days from September 18, or on December 17, 2009. But neither did ECUSA file for review within that timeline. Thus the decision is now squarely placed in ECUSA's hands: in order to obtain any benefit from a review of the case, should a minimum of four justices of the Supreme Court vote to grant such review, ECUSA must file a response in support of the petition by Monday, March 8. And so must the Diocese of South Carolina.

[UPDATE 03/11/2010: The petition filed by the parishioners was not docketed by the Supreme Court Clerk's office until February 22, 2010, one week after the original filing deadline.That means the deadline for ECUSA (and any other party) to join in the petition is now March 15, 2010. I am changing all the references to "March 8" that follow this paragraph to March 15 accordingly.]

What if ECUSA files such a response by March 15, but the Diocese does not? We will then be squarely presented with the question of just what "ECUSA" is, and who has the authority to represent it in court. For ECUSA is, as discussed many times on this blog, just a voluntary association of dioceses, organized at common law, and not under the law of any particular State. At common law, voluntary associations could not even appear in court, let alone sue in their own name. So the first question is: by what authority can anyone claiming to represent "ECUSA" file a response in the Supreme Court?

Given the current regime at 815, you and I both know the answer they will assert to that question: the Presiding Bishop, as the "chief Pastor and Primate of ECUSA", will instruct her Chancellor, David Booth Beers, to file a response in the name of ECUSA. No one at ECUSA will challenge her authority to do such a thing, and the filing will be a fait accompli.

That does not mean that anyoneoutside of ECUSA could not challenge her authority to file, however. If ECUSA does purport to file a response supporting the vestry's position, look for that response to be challenged by the parties who were victorious in the South Carolina Supreme Court. As I say, there may be a basis on which to question how a voluntary association like ECUSA, with no authority granted it to sue in court by the laws of any particular State (outside of such a State, at least), has any legal capacity to file papers with SCOTUS. The same issue would be presented if a minor -- who lacks the capacity to sue in their own name -- were to try to file papers in the Supreme Court without having a guardian or trustee ad litem first appointed. (However, it appears that no party below raised the issue of ECUSA's capacity to be sued and to sue in its own name in the South Carolina courts, and so that may be preclusive on this issue, even though we are now before an entirely different court.)

Let us assume that ECUSA can cross this hurdle, and be recognized as a party supporting the petition for certiorari before the Supreme Court. What, then, becomes of the Diocese of South Carolina? If it files no response in support of the petition by March 15, then as we have seen, under the Rules of the Court it "will not qualify for any relief" from the Court. Thus even if the Court were inclined to uphold the Dennis Canon as against the State's Statute of Frauds (which provides that to create a valid trust, the owner of the property must sign a document to that effect), a victory for the Dennis Canon could not do anything for the right of the Diocese to assert a trust in the All Saints Waccamaw property -- if it did not file a response in support of the petition by March 15.

And as all readers of this blog know by now, an unincorporated association such as ECUSA is incapable of taking title to any property, real or personal. (That is why ECUSA had to form the New York religious corporation known as the Domestic and Foreign Missionary Society, as explained in this earlier post. The DFMS holds title to all real and personal property used by ECUSA -- from 815 Second Avenue in New York City to the hundreds of trust accounts on deposit with Merrill Lynch and Morgan Stanley.) While property may be held in trust for an unincorporated association, the terms of such a trust may be enforced only by the members of that association (Restatement [2d] of Trusts, section 391, and comment c). But the only party to the South Carolina litigation which is a member of ECUSA is the Diocese of South Carolina. And if it does not choose to support the petition, then how can ECUSA enforce the Dennis Canon? It could not take title to the parish property in its own name (the DFMS is not, and never has been, a party to the South Carolina litigation).

And the minority parish is not a member of ECUSA, nor is it a named beneficiary of the Dennis Canon. So it cannot stand in for the Diocese, if the latter chooses not to support the petition.

Could the Presiding Bishop order the Diocese of South Carolina to file a response in support of the Petition? She could certainly try. But if even an ecclesiastical court for the trial of a bishop had to admit that it was powerless to compel the autonomous Diocese of Los Angeles to produce documents in the trial of Bishop Bennison (see the discussion toward the end of section III in this post), it is hard to see how the Presiding Bishop could have any greater authority over the autonomous Diocese of South Carolina.

Thus I think that ECUSA may find itself in a position of what chess players call Zugzwang in the South Carolina litigation: it must file a response in support of the petition by March 15, but even if it does so, there is no way such a filing will do it any good unless the Diocese of South Carolina also files in support of the petition. And there is no clear authority by which the Presiding Bishop could order the Diocese (Bishop Lawrence, after all, is not himself a party to the litigation) -- an unincorporated association who could not even lawfully assemble within 20 days to vote on instructing its chancellor to file anything -- to take any steps on behalf of ECUSA.

We thus have here a perfect illustration of the ultimate futility of ECUSA's stance in all the ongoing property litigation. It acts as though it were in charge, but it really is not, when push comes to shove. For ECUSA, which cannot legally hold title to any property, can act only through its member dioceses, which are autonomous in matters affecting their own temporalities. And if a member diocese believes that ECUSA's litigation stance will work counter to its own best interests within the Diocese, then ECUSA is powerless to require it to act against those interests.

The petition as filed is thus procedurally very weak. The parties who were most affected by the decision in the 2000 action -- which found the Dennis Canon had no legal effect in the State -- chose not to seek review by the deadline. Any joinder now will be seen as very lame, and will not carry the same weight as if it had been filed within the original time period.

As for the content of the petition, please note that it says absolutely nothing about reviewing the decision in the 2005 action, which was the action in which the petitioners themselves were involved. Moreover, the 2005 action involved only questions of State law under the provisions governing non-profit religious corporations. The Supreme Court has no jurisdiction to review questions of State law unless they also necessarily raise a federal question because it is inextricably bound up with them. That is not the case with the issues involved in the 2005 action, and that is why the petition does not discuss or try to raise those issues.

So we have a petition filed by persons who were not parties to the 2000 action, seeking to have the Court review the decision in that case as to a Church canon of which they are not a beneficiary, and which they have no standing to enforce. Meanwhile, the actual parties who are bound by that decision did not seek review within the original time limit, and unless both of them now do so together, I fail to see how any request for review by ECUSA alone could result in any relief favorable to it in the case. Those are just my first reactions to reading the petition; I am open to being persuaded differently by subsequent filings in the case.

There is one final point I wish to make in regard to the petition as filed. Notice how it tries, again and and again, to finesse the issue that when ECUSA sought to implement Justice Blackmun's infamous dictum in Jones v. Wolf, it failed to follow his directions. Look at this passage from Justice Blackmun's majority opinion in Jones, quoted (with emphasis as per the petition) at page 5 of the petition:

At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church.

Jones v. Wolf thus indicated that a "general church" could embody a trust in its Constitution, if it wished to create an effective trust interest in the property of its subordinate parishes. But that is not what ECUSA did. To have amended its Constitution would have required the votes of two successive General Conventions, over a period of four years, in the interim of which the measure would have been up for discussion by the conventions of each of its 100+ dioceses. That would have been an almost certain route to the defeat of any such constitutional amendment, once the parishes were made aware of its implications for the ownership of their property.

No, ECUSA fudged the issue by rushing through, on the last day of General Convention in 1979, an amendment to its Canons -- which could take effect immediately, without the necessity of consulting any parishes or diocesan conventions. (And there is a considerable question which remains whether the last-day maneuverings to rush the amendment through were adequate to meet the minimum procedural requirements for such an amendment at the time.) So not only did ECUSA likely fail to follow its own procedures for a proper canonical amendment, but it failed to do what the Supreme Court suggested -- which was to enact an amendment to its constitution.

No State court anywhere, to my knowledge, has been called upon to address this point. All of the decisions to date which uphold the Dennis Canon against the statute of frauds simply seem to assume, doubtless mostly out of their ignorance of canonical niceties, that a trust expressed via a canon would be the same as a trust expressed in the general church's constitution. But as those of us in ECUSA know all too well, it simply is not so. Constitutional amendments take a lot more time and trouble, and an amendment such as the Dennis Canon would have provoked a lot more discussion among the rank and file than a change to the canons rushed through at the last minute and known to but a few insider deputies and bishops. Needless to say, I believe ECUSA would be much better off today had it adhered strictly to the letter of Justice Blackmun's gratuitous advice. And that is why I find a passage such as this, at page 13 in the current petition for certiorari, completely disingenuous (bold emphasis added):

[S]ee also Cumberland Presbytery v. Branstetter, 824 S.W.2d 417, 422 (Ky. 1992) (holding that an express trust provision in a hierarchical church’s constitution was legally enforceable because the general church “followed to a T the suggestion of the U.S. Supreme Court in Wolf as to a method of ensuring ‘that the faction loyal to the hierarchical church will retain the church property’”).

While the Cumberland Presbytery may have amended its constitution, ECUSA did not, and so it is highly misleading to suggest by this quotation that ECUSA followed the Supreme Court's suggestion "to a T". Therein lies all its current problems with trying to enforce the Canon, and why it may win the argument in some States, but not in others (and that is also why ECUSA would be precluded from suing Justice Blackmun's estate for legal malpractice, even were it so inclined -- because it did not follow his advice as he gave it).

All in all, then, this petition raises some highly interesting and technical legal questions, but they are not raised by the persons who would be most affected by them. That realization may in turn affect its chances in the Supreme Court. Watch to see who files what further papers in the Supreme Court by March 15.

[UPDATE 03/12/2010: The Supreme Court's docket sheet for the case now reflects the entry of an order yesterday extending the time for all respondents to file responses to the petition for certiorari until April 23, 2010. That extension will not affect the March 15 deadline for ECUSA, as discussed above, to file a response in support of the petition. Under the language of the applicable rule, the latter deadline is fixed upon the docketing of the petition, and "will not be extended."

It may be that ECUSA is just going to let the Waccamaw parishioners carry the ball on their own. But if they do, I then cannot see how those parishioners have any standing to ask the Court to review the South Carolina Supreme Court's holding with respect to the Dennis Canon, for the reasons I have stated above.]

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